# Gopal Ji Agrawal v. Anurag Kumar Dixit & Ors

- **Citation:** (2024) 5 ILRA 389
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-31
- **Case number:** Matters Under Article 227 No. 6031 of 2024
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gopal-ji-agrawal-v-anurag-kumar-dixit-ors-52112
- **Pages:** 7

## Headnote

Civil Law - Civil Procedure Code,1908 -
Section 47 - O. 13 - Rule 10(1) - SCC Suit
was
filed
by
landlord/petitioner
on
8.12.1981, dismissed, not accepting tenant
landlord relationship - SCC Revision was
filed by petitioner, dismissed - Writ Petition
was filed challenging both orders, allowed
- Thereafter, Review Application was filed
by tenant/defendant, dismissed - S.L.P.
was filed before Hon'ble Apex Court by
tenant, dismissed - Issue attained finality -
Tenant filed application u/s 47 CPC -
Executing court dismissed - Tenant filed
SCC Revision, dismissed - Both orders
challenged in High Court, dismissed -
Application under O. 13 R. 10(1) filed by
defendant,
for
summoning
record
-
Dismissed - Revision filed by tenant -
Stayed - Impugned Order - Held, revision
must be confined to facts mentioned in
original application - Passing the interim
order, considering new fact beyond original
application under O. 13 R. 10(1) CPC is bad
in law - Hence, impugned order quashed
(Para 3, 5, 19, 22)

Petition allowed. (E-13)

List of Cases cited:

## Text

5 All. Gopal Ji Agrawal Vs. Anurag Kumar Dixit & Ors.
389
----------
(2024) 5 ILRA 389
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2024

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 6031 of 2024

Gopal Ji Agrawal ...Petitioner
Versus
Anurag Kumar Dixit & Ors. ...Respondents

Counsel for the Petitioner:
Kamlesh Kumar Tiwari

Counsel for the Respondents:
Manoj Singh Rathaur, Udayan Nandan

Civil Law - Civil Procedure Code,1908 -
Section 47 - O. 13 - Rule 10(1) - SCC Suit
was
filed
by
landlord/petitioner
on
8.12.1981, dismissed, not accepting tenant
landlord relationship - SCC Revision was
filed by petitioner, dismissed - Writ Petition
was filed challenging both orders, allowed
- Thereafter, Review Application was filed
by tenant/defendant, dismissed - S.L.P.
was filed before Hon'ble Apex Court by
tenant, dismissed - Issue attained finality -
Tenant filed application u/s 47 CPC -
Executing court dismissed - Tenant filed
SCC Revision, dismissed - Both orders
challenged in High Court, dismissed -
Application under O. 13 R. 10(1) filed by
defendant,
for
summoning
record
-
Dismissed - Revision filed by tenant -
Stayed - Impugned Order - Held, revision
must be confined to facts mentioned in
original application - Passing the interim
order, considering new fact beyond original
application under O. 13 R. 10(1) CPC is bad
in law - Hence, impugned order quashed
(Para 3, 5, 19, 22)

Petition allowed. (E-13)

List of Cases cited:
1. Pradeep Mehra Vs Harijivan J. Jethwa (since
deceased THR. LRS.) & ors. (Civil Appeal No.
6375 of 2023 )

2. Shri Jagdamba Prasad (Dead) Thr. Lrs. &
ors.Vs Kripa Shankar (Dead) Thr. Lrs. & ors.;
2014(5) SCC 707

3. Jagbir Singh Vs VIth Additional District and
Sessions Judge Bijnor & ors.; 1997(30) ALR 358

4. Haryana Vidyut, Parsaran Nigam Limited &
anr. Vs Gulshan Lal & ors.; 2009 (13) SCC 354

5. Mr. Love Jain Vs Sh. Manak Chand Jain;
2010(173) DLT 534

6. Satya Narain & ors.Vs District Judge, Churu &
ors.; 2009 (1) W.L.N. 520

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Kamlesh Kumar Tiwari,
learned counsel for petitioner and Sri Sashi
Nandan, learned Senior Counsel assisted by
Sri Udayan Nandan along with Sri Chandan
Sharma, learned counsel for respondents.

2. Present petition has been filed with
following relief;

" It is therefore most respectfully
prayed that this Hon'ble Court may be
pleased to set aside entire proceeding of
Civil Revision No. 4/2024 (Anurag Kumar
Dixit Vs. Sitaram and others) pending in the
court of District Judge, Azamgarh and also
further be pleased to set aside the impugned
order dated 25.1.2024 passed by In-charge
District Judge, Azamgarh in Civil Revision
No. 4/2024 Anurag Kumar Dixit Vs. Sitaram
and others)."

3. Brief facts of the case are that SCC
Suit No. 8 of 1981 was filed by
landlord/petitioner on 8.12.1981 and after
hearing the parties, the same was dismissed
390 INDIAN LAW REPORTS ALLAHABAD SERIES
on 27.11.1991 not accepting the tenant
landlord relationship. Against the said order,
SCC Revision No. 1 of 1992 was filed by the
landlord/
petitioner,
which
was
also
dismissed vide order dated 20.07.1992.
Civil Misc. Writ Petition No. 42284 of 1992
was filed before this Court challenging both
the orders, which was allowed vide order
dated 18.09.2008. Thereafter, Civil Misc.
Review Application No. 250566 of 2008
was filed by the tenant, which was dismissed
on
23.03.2010.
S.L.P.
No.
1622316224/2010 was also filed before Hon'ble
Apex Court by the tenant against the orders
dated 18.09.2008 and 23.03.2010, which
was dismissed on 7.2.2017. Issue attained
finality.

4. As matter was remanded, SCC
Court has again heard the case and SCC Suit
No. 8 of 1981 also decreed on 22.03.2010.
Thereafter, execution case no. 3 of 2010 was
also filed by the landlord/ petitioner on
13.10.2010. Tenant filed SCC Revision No.
98 of 2010 challenging the order/ decree
dated 22.3.2010. After hearing both the
parties SCC Revision No. 98 of 2010 was
dismissed vide order dated 23.01.2016. The
aforesaid two orders were assailed by filing
Misc. Petition U/A 227 No. 2639 of 2016
before this Court, which was dismissed vide
order dated 18.10.2019. Matter attained
finality as no SLP was filed.

5. Thereafter, defendant/tenant has
also filed application to adjourn the case for
filing objection under Section 47 CPC. After
hearing the application filed by the tenant,
executing court dismissed the objection on
5.5.2022. The order dated 5.5.2022 was
assailed by the tenant/ defendant by filing
SCC Revision No. 55 of 2022, which was
also dismissed on 3.8.2022. The orders
dated 5.5.2022 & 3.8.2022 were assailed by
the tenant/defendant by filing Misc. Petition
No. 6945 of 2022 on 17.8.2022. On
2.11.2022, Misc. Petition No. 2639 of 2016
and Misc. Petition No. 6945 of 2022 were
clubbed together and dismissed after hearing
the parties.

6. Thereafter, one another application
was filed by tenant/ defendant under Order
13 Rule 10(1) CPC for summoning the
record of Original Suit No. 35 of 1958 in
which landlord/ decree holder has filed
objection. On 18.01.2024, executing court
after hearing the objection filed by decree
holder bearing 251 Ga2, dismissed the
application. Thereafter, tenant/ defendant
challenged the order dated 18.01.2024 by
filing revision before District Judge,
Azamgarh and vide order dated 25.01.2024,
order passed by executing court dated
18.01.2024 was stayed.

7. Learned counsel for the petitioner
submitted that application No. 251 Ga2 has
been filed under Order 13 Rule 10(1) CPC
only to delay the execution proceeding,
which was rightly rejected by execution
court vide order dated 18.01.2024 observing
the same.

8. He next submitted that against that
Civil Revision No. 4 of 2024 was filed by
the tenant/ defendant entirely on different
facts, which are not the part of earlier
application filed under Order 13 Rule 10(1)
CPC in which revisional court has
incorrectly
stayed
the
order
dated
18.01.2024 in execution proceeding. He
firmly submitted that first of all, record so
summoned through application under Order
13 Rule 10(1) CPC is not relevant for
present controversy as the execution court
may not travel beyond the judgment and
decree passed by SCC Court. Secondly,
revision may not be filed on a new fact about
the pendency of application filed under
5 All. Gopal Ji Agrawal Vs. Anurag Kumar Dixit & Ors.
391
Section 47 CPC, which is not the part of
application filed under Order 13 Rule 10(1)
CPC. In fact, in this application, there is no
whisper about the pendency of application
under Section 47 CPC. Therefore, on both
the counts, revision absolutely lacks merit
and liable to be dismissed, but contrary to
this, it was entertained and order of stay has
also been passed in teeth of settled
provisions of law. Therefore, present
petition may be allowed and impugned order
dated 25.01.2024 may be quashed. In
support of his contention, he has placed
reliance upon the judgment of Apex Court
as well as different judgments of other Court
in the matters of Pradeep Mehra Vs.
Harijivan J. Jethwa (since deceased THR.
LRS.) & Others (Civil Appeal No. 6375 of
2023 ) decided on 30.10.2023, Shri
Jagdamba Prasad (Dead) Thr. Lrs. &
others Vs. Kripa Shankar (Dead) Thr. Lrs.
& others; 2014(5) SCC 707, Jagbir Singh
Vs. VIth Additional District and Sessions
Judge Bijnor and others; 1997(30) ALR
358, Haryana Vidyut, Parsaran Nigam
Limited & another Vs. Gulshan Lal &
others; 2009 (13) SCC 354, Mr. Love Jain
Vs. Sh. Manak Chand Jain; 2010(173)
DLT 534 & Satya Narain & others Vs.
District Judge, Churu & others; 2009 (1)
W.L.N. 520`.

9. Learned Senior Counsel could not
dispute the fact that pendency of Section
47 CPC has not been raised in application
under Order 13 Rule 10(1) CPC and first
time raised in revision, but only submitted
that once application under Section 47
CPC is pending, execution proceeding
may
not
be
completed,
therefore,
revisional court has rightly stayed the
process (parwana).

10. I have considered the rival
submissions advance by learned counsel
for the parties and perused the record as
well as judgments relied upon.

11. From the perusal, it is apparently
clear that two rounds of litigation had
taken place. First round was about the
tenant- landlord relationship, matter went
up to the Apex Court and decided in
favour of petitioner-landlord. Likewise in
second round was for disposal of suit on
merits, the matter was again decided in
favour
of
petitioner-landlord,
which
attained finality at the stage of High Court
as order of High Court has never been
challenged before the Apex Court.

12. Now coming to the issue present
before this Court. Undisputedly, in
application under Order 13 Rule 10(1)
CPC, defendant/ tenant are praying for
summoning the record of Original Suit No.
35 of 1958 (Fern Rekhchand and others
Vs. Sitaram and others), which is not
relevant
as
the
present
execution
proceeding was initiated to execute the
judgment and decree dated 23.03.2010 in
SCC Suit No. 8 of 1981. In fact, record of
Original Suit No. 35 of 1958 cannot be
taken into consideration for the very
simple reason that executing court cannot
travel beyond the judgment and decree for
which execution proceeding has already
been initiated. Therefore, this Court is of
the firm view that filing of application
under Order 13 Rule 10(1) CPC is nothing,
but an attempt to adopt delay tactics.

13. The very similar issue was before
the Apex Court in the matter of Pradeep
Mehra (supra). Relevant paragraph is
quoted below;

"A bare perusal of the aforesaid
provision shows that all questions between
the parties can be decided by the executing
392 INDIAN LAW REPORTS ALLAHABAD SERIES
court. But the important aspect to remember
is that these questions are limited to the
"execution of the decree". The executing
court can never go behind the decree. Under
Section 47, CPC the executing court cannot
examine the validity of the order of the court
which had allowed the execution of the
decree in 2013, unless the court's order is
itself without jurisdiction. More importantly
this order (the order dated 12.02.2013), was
never challenged by the tenants/ judgment
debtors before any forum."

14. This matter was also before this
Court in the matter of Jagbir Singh (supra).
Relevant paragraphs are being quoted
below;

"10. Executing court can not go
behind the decree is a well settled principle
of law. The executing court is not invested
with the right to determine controversial
questions which are the basis of the decree
to be executed. It can not go into such
questions and act as a trial court.

11. The power of the executing
court travels only to the extent of
interpreting the decree or to identify the
propriety.
Even
for
the
purpose
of
identifying the property or interpreting the
decree it can not take additional evidence. It
was so held in the case of Lalmani v. Shiv
Shanker, AIR 1980 Patna 134 and Sheshwar
Bhartia v. Udiasthree, (1994) Civil Law
Journal 297 (Ori.) when a new right is
claimed, which requires adjudication of a
right in the property and thus indirectly
seeking to avoid the decree passed, is in
effect an adjudication leading to go behind
the decree. In the case of Sarwan Lal v.
Kami Prasad, AIR 1986 Allahabad 1, it was
held that the objection to executability of
decree which boils down to challenging the
maintainability of suit can not be taken
before the executing court. A mixed question
of law and fact can not be raised for the first
time in execution case Bhawarao v.
Saritribai, AIR 1991 Bombay 55 at page 59
Objection tending to show that the decree is
erroneous can not be raised under Section
47 CPC. In Manful Hussain v. Kiran Rano,
(1993) 2 Civil Law Journal 456 (M.P.) in
V.D. Modi v. R. Rahman, AIR 1970 Supreme
Court 1475 the Apex Court held that the
general rule is that an executing court can
not go behind the decree. It must take the
decree as it is and must proceed to execute
it. It can not entertain an objection that the
decree is incorrect in law or facts. In
Addison Pains v. Sant Bux, AIR 1976 Delhi
137, it was held that Section 47 does not
entitle the court to investigate into the
question of validity of the decree when on
the face of it there is nothing illegal in it."

15. Apex Court has also considered the
same matter in the Haryana Vidyut,
Parsaran Nigam Limited (supra). Relevant
paragraphs are being quoted below;

"20. As indicated hereinbefore,
for the purpose of allowing an objection
filed on behalf of a judgment debtor under
Section 47 of the Code of Civil Procedure, it
was incumbent on him to show that the
decree was ex facie nullity. For the said
purpose, the court is precluded from making
an indepth scrutiny as regards the
entitlement of the plaintiff with reference to
not only his claim made in the plaint but also
the defence set up by the judgment- debtor.
As the judgment of the Trial Court could not
have been reopened, the correctness thereof
could not have been put to question.

It is also well known that an
Executing Court cannot go behind the
decree. If on a fair interpretation of the
judgment, Order and decree passed by a
court having appropriate jurisdiction in that
behalf, the relief sought for by the plaintiff
5 All. Gopal Ji Agrawal Vs. Anurag Kumar Dixit & Ors.
393
appear to have been granted, there is no
reason as to why the Executing Court shall
deprive him from obtaining the fruits of the
decree.

In Deepa Bhargava v. Mahesh
Bhargava, 2009(1) RCR (Civil) 507:
2009(1) RAJ 202 : [2008(16) SCALE 305],
this Court held as under:

"11.... An executing court, it is
well known, cannot go behind the decree. It
has no jurisdiction to modify a decree. It
must execute the decree as it is. A default
clause contained in a compromise decree
even otherwise would not be considered to
be penal in nature so as to attract the
provisions of Section 74 of the Indian
Contract Act."

22. We are not oblivious of the fact
that the respondents legally would not have
been entitled to the reliefs prayed for by
them. However, as a decree has been
passed, we do not intend to go behind the
same. The Executing Court shall, it goes
without saying, execute the decree strictly in
terms thereof."

16. From perusal of judgments referred
hereinabove, it is apparently clear that
executing court cannot sit in appeal over the
judgment and decree, which is to be
executed and cannot examine the validity of
judgment and decree. Execution Court has
no jurisdiction to travel beyond the
judgment and decree, but to execute the
same. Therefore, Execution Court has
rightly rejected the application under Order
13 Rule 10(1) CPC.

17. Now coming to the scope of
revision, this Court is of the view that in a
question of fact, which has not been raised
in original application cannot be raised
while filing revision.

18. The similar issue was before the
Apex Court in the matter of Shri Jagdamba
Prasad (Dead) (supra). Relevant paragraph
is being quoted below;

"According to the legal principle
laid down by this Court in the case
mentioned above, the power of the
Revisional Authority under Section 48 of the
Act only extends to ascertaining whether the
subordinate courts have exceeded their
jurisdiction in coming to the conclusion.
Therefore, if the Original and Appellate
Authorities are within their jurisdiction, the
Revisional Authority cannot exceed its
jurisdiction
to
come
to
a
contrary
conclusion by admitting new facts either in
the form of documents or otherwise, to come
to the conclusion. Therefore, we answer
point no. 1 in favour of the appellants by
holding that the Revisional Authority
exceeded its jurisdiction under Section 48 of
the Act by admitting documents at revision
stage and altering the decision of the
subordinate courts."

19. In present case, undisputedly, in
application under Order 13 Rule 10(1) CPC,
there is no whisper about the pendency of
objection under Section 47 CPC rather the
same was filed to summon the record of
Original Suit No. 35 of 1958 except that
nothing has been stated therein, therefore,
pendency of application under Section 47
CPC cannot be a ground to be entertained by
the revisional court. The revision must be
confined to the facts mentioned in the
original application. Passing the interim
order considering any new fact beyond the
original application under Order 13 Rule
10(1) CPC is bad in law. Therefore,
revisional court has erred while entertaining
the revision and staying the order dated
18.01.2024. Apex Court has also taken the
same
view
that
revision
cannot
be
394 INDIAN LAW REPORTS ALLAHABAD SERIES
entertained beyond the facts, which is not
the part of original application.

20. In fact after two rounds of
litigation, which are attained finality at the
level of Apex Court as well as High Court,
filing of such application before the
Execution Court is nothing but misuse of
process of law. Similar issue was before the
Delhi High Court in the matter of Mr. Love
Jain (supra) and Delhi High Court has taken
the same view. Relevant paragraphs are
being quoted below;

"24.
In
the
present
case,
petitioners having lost up to Supreme Court,
now in the second round of litigation have
filed frivolous objections just to deny the
fruits of award which was made in favour of
the respondent.

25. Present petition under Article
227 of the Constitution of India is nothing
but gross abuse of process of law. A strong
message is required to be sent to those
litigants who are in the habit of filing bogus
and frivolous objections in the execution
proceedings and thereby deprive the decree
holder fruits of the award passed in its
favour."

21. Rajasthan High Court in the matter
of Satya Narain (supra) has also considered
the similar dispute that continuance of such
proceeding
entertaining
the
frivolous
application amount to abuse of process of
law. Relevant paragraphsd are being quoted
below;

"17. Here in this case, when the
facts are not in dispute and the facts show
that judicial pronouncements by the courts
either attained the finality or the applicant
could not get the relief in his own suit and
appeal and further appeal, then he
submitted this application under Section
151 CPC before the court which cannot
entertain the application for the relief
prayed and there is no plea even for
namesake how the application of the
respondent is maintainable, then this Court
is not inclined to reject the writ petition of
the petitioners to perpetuate the harm which
may be caused by the continuation of the
proceedings in the court below initiated on
the application filed by the respondent. At
this juncture, this fact cannot be ignored
that the judgment debtor in the civil original
suit no.17/2004 is not a stranger but alleged
to be closely associated with the present
respondent Bajrang Lal and it is alleged that
both Bhagwati Prasad and Bajrang Lal
were
members
of
the
management
committee governing the school in question.

18. Satya Narain & Ors. vs.
District Judge, Churu & Ors. The further
reason for entertaining this petition is that
the respondent's suit itself has been
dismissed by the trial court under Order 7
Rule 11 CPC and that dismissal has been
upheld by this Court vide detail judgment
dated 3.7.2006 and the Hon'ble Apex Court
rejected the respondent's prayer for grant of
interim relief. The respondent, therefore, is
virtually trying to undo what has been done
by the orders of the Court in his own suit by
the trial court by judgment and decree dated
13.1.2006 and by this Court by judgment
dated 3.7.2006 and furthermore, when
injunction application has been dismissed
by the Hon'ble Apex Court. How the
respondent, who is pursuing his suit, can
during pendency of that suit, seek a relief
under Section 151 CPC which will
necessarily involve determination of his
right, title or interest in the property in
question. It is case of rarest of rate nature
because of the reason that the plaintiffs who
were successful in the litigation initiated in
the year 1994 after consuming ten years in
the trial court and thereafter successful in
5 All. Indu Awasthi @ Sarvendra Awasthi & Ors. Vs. State of U.P. & Ors.
395
the High Court wherein this Court dismissed
the appeal of the judgment debtor and the
respondent lost in his SB Civil Writ Petition
No.1052/2008 Satya Narain & Ors. vs.
District Judge, Churu & Ors. suit and
regular appeal and the Hon'ble Apex Court
specifically refused the interim relief, the
High Court may under Article 227 of the
Constitution of India exercise jurisdiction in
pending proceedings in civil court in rarest
of rate case and it is one of such case where
the continuation of the proceedings in the
trial court will amount to abuse of process
of the court."

22. Therefore, under such facts and
circumstances of the case, the impugned
order dated 25.1.2024 passed by Revisional
Court/ In-charge District Judge, Azamgarh
is hereby quashed and petition is allowed.
Execution Court is directed to proceed in
accordance with law and complete the
execution
proceeding
at
the
earliest
considering this fact that SCC Suit for
eviction was filed in 1981.

23. No order as to costs.
----------
(2024) 5 ILRA 395
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2024

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Matters Under Article 227 No. 9451 of 2023

Indu Awasthi @ Sarvendra Awasthi & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Mahesh Pandey, Narendra Kumar Singh,
Santosh Kumar Pandey
Counsel for the Respondents:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Section 306 - The Code of Criminal
Procedure, 1973 - Sections 173(8), 156(3)
- On application u/s 156(3) Cr.P.C. by
informant, the learned Special Judge
directed the Station Officer to register a
criminal case, in compliance of this, an
F.I.R. u/s 306 IPC was registered against
seven named persons and one unknown
person including present petitioners -
Police
submitted
charge-sheet
-
Application for further investigation -
Rejected by Magistrate - Scope of Section
173(8) Cr.P.C. - Held, an application to
conduct further investigation moved by
accused was misconceived, without any
right provided to accused by law - Case was
thoroughly investigated by I.O. and he
noticed that one earlier application was
moved by informant alleging the same facts
therein , he conducted the investigation
accordingly and mentioned this fact in
charge-sheet - Power to make order as to
further

investigation
is
available
to
Magistrate u/s 156 (3) CrPC even at postcognizance stage until trial commences i.e.
charges are framed - It can exercised suo
motu by Magistrate himself, depending on
facts of each case - No locus standi to move
application - Hence, no illegality in impugned
order and accordingly dismissed. (Para 3, 4,
34, 36, 38, 39)

Petition dismissed. (E-13)

List of Cases cited:

1. Babubhai Vs St. of Gujarat & ors., 2010 AIR
SCW 5126

2. St. Through Central Bureau of Investigation
Vs Hemendhra Reddy & anr., Etc., 2023 SCC
Online SC 515

3. Vinay Tyagi Vs Irshad Ali @ Deepak & ors.
reported in (2013) 5 SCC 762

4. Ram Lal Narang Vs State (Delhi Admn.), AIR
1979 SC 1791